Old Bank of Stoutsville v. Curtiss

• Decision Date: 01 April 1924
• Docket Number: No. 18268.,18268.
• Parties: OLD BANK OF STOUTSVILLE v. CURTISS.
• Court: Missouri Court of Appeals

260 S.W. 812

214 Mo. App. 270

OLD BANK OF STOUTSVILLE v. CURTISS.

No. 18268.

St. Louis Court of Appeals, Missouri.

April 1, 1924.

Appeal from Circuit Court, Rails County; T. C. Hays, Judge.

Action by Old Bank of Stoutsville against Jerry Curtiss, as administrator of the estate of James Curtiss, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

J. H. Whitecotton, of Moberly, E. T. Fuller, of Hannibal, and J. F. Barry, of New London, for appellant.

James P. Boyd, of Paris, and E. L. Alford, of Perry, for respondent.

DAVIS, C.

This is an action originating in the probate court of Monroe county on a demand on two promissory notes. The cause was appealed to the circuit court of Monroe county, and, on change of venue, transferred to the circuit court of Rails county, where, upon trial, the jury returned a verdict for $4,398.83 in favor of plaintiff, and, from the judgment entered thereon, defendant appealed.

The evidence tends to show that James Curtiss died on March 28, 1920, in Monroe county, where he had resided for a number of years. Op the 26th of April, 1920, letters of administration on his estate were granted to Jerry Curtiss; the first notice, of such appointment and letters, was published within 10 days thereafter, to wit, on April 30, 1920. The demand on the two notes was, on April 26, 1921, served on defendant. and filed in the probate court of Monroe county.

The testimony further tends to show that James Curtiss and his son, Richard Curtiss, were partners in the farming business, in Monroe county, some 10 or 12 years prior to the fall of 1914, when the partnership was terminated, of which partnership, and the termination thereof, plaintiff had knowledge. During the partnership both James Curtiss and Richard Curtiss borrowed money from the plaintiff bank, usually giving one note for the loan obtained, which at times was signed by James Curtiss with his mark, he being unable to read or write, and by Richard Curtiss. At other times Richard Curtiss signed the name of his father, James Curtiss, and his own name, to the note, concerning which notes James Curtiss, upon coming to the bank, would make inquiry, desiring to know upon what notes, and the amount thereof, he was liable. The officers of the bank would show him the notes to which his name had been signed by Richard Curtiss, and the evidence runs to the effect that he approved of the action of Richard Curtiss in signing his, James Curtiss', name to the notes. After the dissolution of the partnership, Richard continued to live with his father upon the farm, continuing in the business of feeding cattle, hogs, and mules. During the partnership, relative to money borrowed from the bank by James Curtiss, the note would be signed above by the name of James Curtiss with Richard's name underneath; relative to the money Richard borrowed, his name would appear above, and James Curtiss below. The note dated September 22, 1919, for $3,247.93, the names of Richard Curtiss and James Curtiss being signed thereto by Richard Curtiss for money by him borrowed, is shown to be a renewal of a note signed for money loaned. The $1,000 note, signed in the same way and for the same purpose, was given in renewal of a number of notes.

Alva C. Jordan, assistant cashier of plaintiff, testified: That James Curtiss told Mr. Dooley, an officer of plaintiff, that if Richard came in there, in his absence, and wanted money to let him have it, and use his name, sign his name; that on November 22, 1919, James Curtiss, while in the bank, looked over these two notes, and said they were all right.

Russell Dooley, former assistant cashier of plaintiff testified: That James Curtiss told his father, James H. Dooley, in his presence, and in Mr. Jordan's presence, that any time Richard needed money it was all right for him to sign his name to the note; that he would back him and take care of them; it would be all right to sign James Curtiss' name.

James H. Dooley, cashier of plaintiff testified: That James Curtiss said Richard Curtiss would sign his name to the notes, and it would be all right with him; that he expected to back him up in this business; after this Richard Curtiss borrowed money from us at different times, and signed his father's name to the notes; that he heard a conversation in reference to the two notes sued on after they were signed, and after the bank had possession of them; he thinks that James Curtiss was present when Richard Curtiss signed the $3,247.98 note; that frequently Mr. Curtiss would come in and ask about the notes.

Arnold Dooley testified: That he worked for plaintiff at different times; he heard James Curtiss tell Mr. Jordan that it was all right for Richard to sign his name, James Curtiss, to the paper; that James Curtiss would come in the bank, call for the notes, look over them and say, "They are all right."

The defendant's evidence tends to show that from the year 1917 until his death, James Curtiss was of unsound mind, and incapable of transacting business. Although the evidence shows that plaintiff was from 85 to 90 years of age, probably 90, yet plaintiff's evidence, through James Curtiss' family physician, tends to show that, to within a few days of his death, he was of sound mind. Plaintiff's evidence further tends to show that he transacted some business after 1917, sold and conveyed land by warranty deed, renewed loans on his farm, and paid money on the loans.

I. Defendant assigns as error the overruling of his objection to the introduction of any testimony, the refusal to give his instruction in the nature of a demurrer to the evidence, the overruling of his Motion in arrest of judgment, and his instruction No. 2, offered and refused. As these instructions all relate to the statute of limitations, found in section 182, R. S. Mo. 1919, we will consider them together. The following sections of the Revised Statutes of Missouri 1919, relating to the time in which claims may be filed against the decedent's estate, so far as here pertinent, are as follows:

"Sec. 181. All demands against the estate of any deceased person shall be divided into the following classes: * * * VI. All demands thus exhibited after the end of six months, and within one year after the date of the granting of the first letters on the estate.

"Sec. 182. All demands not thus exhibited in one year shall be forever barred, saving to infants, persons of unsound mind, or imprisoned, and married women, one year after the removal of their disability, and said one year shall begin to run from the date of the granting of the first letters on the estate where notice shall be published, the first insertion within ten days after letters are granted; and in all other cases said one year shall begin to run from the date of the first insertion of the publication of the said notice."

Section 7058, relating to the construction of statutes, is in part as follows:

"The construction of all statutes of this state shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute: * * * third, the word `month' shall mean a calendar month, and the word `year' shall mean a calendar year, unless otherwise expressed, and the word `year' be equivalent to the words `year of our Lord;' fourth, the time within which an act is to be done shall be computed by excluding the first day, and including the last; if the last day be Sunday it shall be excluded."

The first notice of publication having been made within 10 days, defendant asserts that the filing of the claim in the probate court on April 26, 1921, was not, within the meaning of the statute, filed within the time allotted by section 182. Defendant contends that the words "said one year shall begin to run from the date of the granting of the first letter's on the estate," must be construed as including the day of the granting of the letters, and as excluding April 26, 1921, the day on which plaintiff's demand was filed in the probate court, the year thereby ending on April 25, 1921. The decisions relating to the construction of statutes computing time are not in harmony. Their tendency is to give that construction to a statute which will prevent a forfeiture.

In Taylor v. Brown, 147 U. S. 640, 13 Sup. Ct. 549, 37 L. Ed. 313, discussing this question, the court say:

"While it is desirable that there should be a fixed and certain rule upon the subject, it must be conceded that the rule which excludes the terminus a quo is not absolute, but that it may be included, when necessary to give effect to the obvious intention."

In State ex rel. v. Gasconade Co. CA., 33 Mo. 102, it is held: In the computation of time it is laid down, generally, that whore the computation is to be made from an act done, the day when such act was done is included; but it will be excluded whenever such exclusion will prevent a forfeiture.

In City of St. Louis, etc., v. Bambrick, 41 Mo. App. 648, loc. cit. 650, referring to what is now section 7058, supra, it is said:

"We are of the opinion that this statute is intended to furnish a general rule, plain and comprehensible, for the computation of the time mentioned in all statutes, unless the terms used therein make such construction inadmissible."

In determining the intention of the lawmaking body, with respect to the words in section 182, that "said one year shall begin to run from the date of the granting of the first letters on the estate," they are to be considered with the first sentence in section 182, that "All demands not thus exhibited in one year shall be forever barred" and that provision of the sixth clause of section 181, supra, relating to demands "exhibited after the end of six months, and within one year after the date of the granting of the first letters on the estate." We think the Legislature intended that section 182 should be interpreted according to the rule enunciated...